July 19, 2017

Mr. Gilles McDougall

Acting Secretary General
The Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, Ontario, K1A 0C9
gilles.mcdougall@cb-cda.gc.ca

Dear Mr. McDougall,

Re: Post-Secondary Educational Institutions 2018-2020 - Proposed Statement of Royalties

to Be Collected by Access Copyright for the Reproduction, Communication to the Public by
Telecommunication, Making Available to the Public, and Authorization of Such Acts in
Canada, of Works in its Repertoire

The Canadian Association of Research Libraries (CARL) represents 29 university library

members and two federal government libraries. CARL provides leadership on behalf of
Canadas research libraries and enhances capacity to advance research and higher education.
It promotes effective and sustainable knowledge creation, dissemination, and preservation;
and public policy that enables broad access to scholarly information.

CARL objects to Access Copyrights Proposed Tariff for Post-Secondary Institutions for the
years 2018 to 2020 in accordance with section 67.1 of the Copyright Act (the Act) for the
reasons noted below.

Since the fundamentals of this Proposed Tariff are similar to the 2011-2013 and 2014-2017
Proposed Tariffs submitted by Access Copyright, many of the objections in this letter have
been raised in previous objections, including in letters submitted by the Canadian Library
Association, the Association of Universities and Colleges in Canada (now Universities
Canada), and the Canadian Federation of Students/Canadian Association of University
Teachers. To the extent that such previous objections are still applicable and not inconsistent
with the following objections, CARL hereby adopts them and incorporates them by reference
herein.

Preliminary Procedural and Jurisdictional Points

CARL notes that the Copyright Board has still not rendered a decision on Access Copyrights
Proposed Tariffs for 2011-2013 and 2014-2017. CARL also notes that the Federal Court has just
rendered a clearly relevant and very controversial decision on July 12, 2017 in the case
Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII),
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http://canlii.ca/t/h4s07, which may be appealed and even stayed pending appeal. There is
also a pending decision in the Federal Court of Appeal involving Access Copyright and
Provincial Governments 1, which was heard on June 20, 2016, that could clearly have an impact
on the above proceedings. It clearly makes no sense and would be manifestly contrary to
procedural fairness to require objectors in the current proceedings to incur major expenses,
intrusive and burdensome interrogatories and to proceed in any other way until all of these
matters are finally resolved, including any judicial review from the pending Board decision
and any appeals and stay proceedings in the recent and forthcoming court decisions. Indeed,
it would be unfair and illogical even to set a schedule until there is sufficient clarity and
finality on the underlying issues of fair dealing and whether a Copyright Board tariff can be
mandatory. CARL specifically denies that the Board has jurisdiction to impose an interim tariff
in this proceeding and it would be a fundamental failure of procedural fairness to even begin
to do so.

CARL asserts as a preliminary and threshold issue that nothing in this letter indicates that we
concede that this tariff or any interim tariff could be mandatory for our member institutions.
At the risk of oversimplification, CARLs position is that the Board may certify a tariff that is
mandatory for Access Copyright but voluntary for users. That is because users may choose to
clear their copyright obligations in other ways, including direct licensing and reliance on
users fair dealing rights and other users rights in the Act. This is not merely a theory but is
the explicit ruling of the Supreme Court of Canada in Canadian Broadcasting Corp. v.
SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 (CanLII), http://canlii.ca/t/gm8b0 (paras
101-133) which, we submit, applies a fortiori to interim tariffs or any final tariffs that may be
certified in this proceeding. Many of our member institutions have expertise and processes in
place to ensure that, in cases where an exception or a license does not apply, transactional
licences are purchased. These institutions would therefore not require blanket licenses or
blanket tariffs to ensure proper payment for the use of copyrighted works. The Board should
invite or, if necessary, order Access Copyright to propose transactional tariffs that, under the
right circumstances, could be useful and attractive to post-secondary institutions.

Objections

1. This tariff should not license activities that fall outside the exclusive rights of a copyright
holder. The Act includes a number of users rights including fair dealing and other
limitations and exceptions that allow for copyright works to be used without the
permission or payment of any kind, much less a tariff. This should be clearly stated in both
the definitions and applications section of any interim or final tariff.
2. The definition of copy in the Proposed Tariff purports to include a number of activities
that are simply not covered by section 3(1) of the Act or otherwise. These include linking,
emailing, displaying, projecting and activity included in s. 2.4(1)(b) of the Act. Any activity
that does not constitute an exclusive right of a copyright owner whose works are proven
to be in Access Copyrights repertoire should be excluded from any interim tariff or tariff.
3. The Proposed Tariff royalty rate for universities is $26 per FTE student for Universities and
$10 for other Educational Institutions. These rates are excessive and exorbitant. The
terms are unfair and inequitable. They do not reflect the current market pricing for
reproduction rights licenses in higher education in Canada or the USA through the

1
THE CANADIAN COPYRIGHT LICENSING AGENCY v. HMQ OF ALBERTA ET AL, A-293-15
 3

Copyright Clearance Centre. They do not even reflect Access Copyrights own offerings,
which are still very excessive for any value they may provide. For example, Access
Copyright currently offers a licence for Canadian universities with a royalty rate of $18 per
FTE, or $15 per FTE if the University signs on for three years. This license, which includes
both digital and print copying and allows for copying up to 20 percent of a work also
provides indemnity to institutions for any copies made within the license limits. 2 The rate
in the Proposed Tariff is also significantly higher than the rate of $13.50 per FTE recently
agreed upon by Copibec and universities in Quebec for the term of May 31, 2017 to May 31,
2021, a licence that is similar in scope to the Proposed Tariff. 3 In addition, the latest royalty
rates for other Access Copyright tariffs were set by the Copyright Board at much lower
rates. For example, the K-12 school sector is set at $2.46 per student for the years 2010 to
2012 and $2.41 for the year 2013 to 2015 4 and the rate for provincial and territorial
governments is set at 11.56 cents for 2005-2009 and 49.71 cents for 2010-2014. 5
Therefore, we believe the $26 per FTE student tariff rate is significantly inflated and both
unsupported and unsupportable by any facts or evidence.
4. The record keeping, reporting, attribution, surveying and auditing and other
administrative requirements in the Proposed Tariff are extensive, burdensome, costly and
unworkable to institutions, and untenable because the prescribed reporting would not
respect the privacy and academic freedom of faculty. They are unnecessary to achieve
any legitimate purpose of Access Copyright. They may indeed be contrary to the federal
PIPEDA legislation and other privacy legislation and with serious implication on freedom
of expression and other rights guaranteed by the Charter of Rights and Freedoms.
Furthermore, since the royalty rate for this tariff is applied on the basis of FTE enrolment
and not by the amounts copied, we believe the only item that should be subject to an
audit is the current FTE enrolment number for each institution. Any other record keeping,
surveying and auditing that is designed to determine the content and amounts of what is
being copied should be left out of the final tariff.
5. Competitive and vibrant markets for works in digital form are thriving and growing, to the
benefit of authors, publishers, readers, students, scholars and Canadians as a whole. The
Proposed Tariff will create severe anti-competitive effects on those markets without any
redeeming value for Canadians, and contrary to the express policies of the Copyright Act
and the Competition Act.
6. Access Copyright has a very limited repertoire in which it holds sufficient rights to offer
any license - particularly digital rights. Access Copyright must adequately prove an actual
factually and legally sufficient chain of title to each and every work in its repertoire and

2
Access Copyright New Offerings Brochure, accessed July 7, 2017, http://accesscopyright.ca/media/84266/ac-
newofferingsbrochure-final.pdf.
3
Renewal of Licensing Agreement with Copibec, Mcgill University Board of Governors, accessed July 7, 2017,
https://www.mcgill.ca/boardofgovernors/files/boardofgovernors/gd16-60_copibec_renewal_memo.pdf.
4
Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of
Works in Its Repertoire: Elementary and Secondary Schools (2010-2015), Decision of the Board (Copyright Board
Canada, February 20, 2016), http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2016/TAR-2016-02-
20.pdf.
5
Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of
Works in Its Repertoire: Provincial and Territorial Governments 2005-2014, Decision of the Board (Copyright
Board Canada, May 22, 2015), http://www.cb-cda.gc.ca/decisions/2015/DEC-2015-03-22.pdf. 126.
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provide a functional and current online free database of such repertoire with sufficient
information for potential users.
7. Certifying the Proposed Tariff would aid the effective mass infringement of copyright by
Access Copyright, which illegally authorizes the copying of works in which it has no rights.
8. Certifying the Proposed Tariff would further assist Access Copyright effectively to create
an extended collective licensing regime without approval of Parliament, and contrary to
principles of the Copyright Act.
9. The Proposed Tariff lacks recognition for the use of works that have already been paid for
or otherwise licensed (under agreements that most Universities already have with the
major academic publishers), and its certification will force Canadian Post-Secondary
Educational Institutions to pay twice or more for such works.
10. The Proposed Tariff purports to limit users from posting any copies of any work in Access
Copyrights repertoire outside of a secure network or in a manner accessible over the
internet. This is a blatant overreach if such activity is licensed, entails fair dealing or is not
substantial.
11. In the absence of an indemnity for the use of works which Access Copyright is not legally
permitted to license, the value of a license from Access Copyright is at most a fraction of
what is sought - and the offering of an indemnity would be illegal because it may be an
infringing act and Access Copyright is not a licensed insurance or indemnity company and
does not meet the statutory requirements for being one.
12. The imposition by the Board of any interim or final tariff that purports to be or is
effectively mandatory would be contrary to the rule of law and an unconstitutional tax
contrary to ss. 53, 54 and 125 of the Constitution Act, 1867 and an unconstitutional
intrusion upon the exclusive rights of the Provinces with respect to education pursuant to
s. 93 of the Constitution Act, 1867.
13. CARL expressly reserves its right to add other grounds for objection or modify or expand
the existing ones in accordance with the Copyright Boards procedure.

Conclusion

For the reasons listed above, CARL fundamentally objects to the Proposed Tariff for Post-
Secondary Institutions for the years 2018 to 2020 in accordance with section 67.1 of the Act.

Yours sincerely,

Susan Haigh
Executive Director / Directrice gnrale
Canadian Association of Research Libraries /Association des bibliothques de recherche du Canada
309 rue Cooper Street, Suite 203
Ottawa Ontario K2P 0G5
T 613.482.9344 x 101
E susan.haigh@carl-abrc.ca
www.carl-abrc.ca